Citation Nr: 0427913
Decision Date: 10/08/04 Archive Date: 10/15/04
DOCKET NO. 99-03 744A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUES
1. Entitlement to a rating in excess of 20 percent for a
lumbosacral strain.
2. Entitlement to service connection for post-traumatic
stress disorder.
ATTORNEY FOR THE BOARD
Rebecca Feinberg, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1988 to
August 1992.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a February 1998 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Oakland, California, which continued the veteran's previously
assigned disability rating of 20 percent for lumbar strain,
and denied service connection for post-traumatic stress
disorder (PTSD).
The issue of PTSD is addressed in the REMAND portion of the
decision below and is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC. VA will provide
notification if further action is required by the appellant.
FINDING OF FACT
The competent and probative evidence of record demonstrates
that the veteran's service-connected lumbosacral strain is
characterized by no ankylosis of the spine, with objective
findings of moderate limitation of motion, with a medical
opinion that the veteran loses approximately 50 percent of
his functionality due to pain during flare-ups.
CONCLUSION OF LAW
The criteria for a disability rating of 40 percent, but no
higher, for lumbosacral strain have been met, effective from
June 10, 2003. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§
4.1, 4.2, 4.7, 4.10, 4.40, 4.45. 4.71a, Diagnostic Codes
5292, 5295 (2002), Diagnostic Codes 5292, 5295 (2003), 68
Fed. Reg. 51,454, et seq. (Aug. 27, 2003) (to be codified at
38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Factual Background
In October 1997, the veteran underwent VA examination. He
indicated that he initially hurt his back when he slipped in
service while carrying a heavy object. He complained of
continuous low back pain, which radiated to his right heel.
He said his right leg gave out once every two to four months.
The pain was constant and mild, and became severe with
bending, lifting heavy weights, or for no reason. He stated
that he had lost about one day of work per week due to his
back pain, over the previous nine months. He could sit for a
few minutes before needing to reposition. The veteran could
walk for 30 minutes and could stand for an hour without pain.
He previously had undergone physical therapy. He reported
twice weekly muscle spasms at work that lasted all day.
On examination, there was mild diffuse tenderness in the
lumbar spine, particularly on the right paravertebral
musculature in the area of the 5th lumbar vertebra and
1st sacral segment. There was spasm in the musculature of
the lumbar spine, bilaterally. Range of motion of the lumbar
spine revealed the veteran was able to forward flex to 45
degrees pain-free, with pain from 45 to 90 degrees. He could
not flex further than 90 degrees, due to severe pain.
Extension of 15 degrees caused pain. Right lateral flexion
to 20 degrees and left lateral flexion to 15 degrees caused
pain. There was bilateral rotation to 30 degrees. The
assessment was lumbar strain.
A February 1999 X-ray report shows that the disc spaces in
the veteran's back were reasonably well maintained. There
was no evidence of significant disc bulge or disc herniation.
There was no evidence of central or neural foraminal
stenosis. The impression was a normal MRI scan of the lumbar
spine.
In May 1999, the veteran underwent VA examination. He
complained of constant soreness. His low back pain symptoms
had never resolved over the years. He suffered acute spasm
with any twisting, turning, or prolonged standing, and when
symptoms were worse, he experienced radicular pain down both
legs. This occurred every three to four months, and caused
him to miss 10-15 days of work.
On clinical evaluation, the veteran could walk on his heels
and toes with some discomfort. There was significant
paraspinal spasm from the lumbosacral area up to the mid
thoracic spine. Range of motion was - flexion to 40 degrees,
extension to 5 degrees, right and left flexion 15 degrees
bilaterally, and rotation 15 degrees on the right and left.
Straight leg raising was positive for pain at 80 degrees
bilaterally. The veteran had normal two-point and vibratory
sensation in both lower extremities. The assessment was
lumbosacral strain with acute paraspinal spasm, a normal June
1999 MRI, and an old compression fracture of the 12th
thoracic vertebra. The examiner commented that, with respect
to the "Deluca" factors, the veteran could expect a 20
percent impairment. See DeLuca v. Brown, discussed below in
the analysis.
In September 2000, the veteran again underwent VA
examination. He described suffering spasms in the right and
left paraspinous musculature with activities such as bending
or lifting. He had pain in the low back with walking more
than a quarter of a mile. He had difficulties doing daily
activities such as picking up his child. In the past, he had
taken physical therapy for strengthening exercises, but this
had not been successful in permanent release of his pain. He
denied bowel and bladder incontinence, or radiation of the
pain into the lower extremities.
On examination, the veteran was nontender to palpation.
There was no visible scoliosis. Forward flexion was 0 to 55
degrees. Extension was to 30 degrees. Right and left
flexion was to 30 degrees. Left and right rotation was from
0 to 30 degrees. All range-of-motion exercises produced pain
across the right and left paraspinous musculature. He was
able to heel and toe walk with slight discomfort across the
lumbar spine. Straight leg raising was positive at 45
degrees bilaterally for pain in the anterior knees. There
was no stated pain in the lumbar spine with straight leg
raises. A February 1999 MRI of the lumbar spine was normal,
showing disk spaces well maintained, without evidence of
significant disk bulge or disk herniation, and no evidence of
central or neuroforaminal stenosis.
In June 10, 2003, the veteran again underwent VA examination.
The examination report indicates the veteran's claims file
was reviewed. The veteran complained of off-and-on back pain
since his discharge from service. It varied in placement and
radiated down the right leg to the knee area, and rarely
radiated down the left leg to the heel. The veteran had no
cauda equina symptoms, and did not use ambulatory aids, but
felt that he might soon need them. He occasionally wore an
elastic back brace when he had increased back pain, but not
as prevention. He stated that he had been a mail processor,
and missed 60 days of work a year in that job. He could only
walk one block before needing to sit down. He could not
engage in certain sports, but normally performed his
activities of daily living.
The veteran appeared uncomfortable during the interview and
examination. He arose carefully from the exam waiting sofa,
placing his weight on his arms to stand up. He gait was
antalgic, favoring the right lower extremity. There was a
very minimal thoracolumbar scoliosis, with concavity to the
right. The veteran's shoulders were level. The veteran had
a rather wide-based stance and gait. He had tenderness to
palpation of the right lumbar musculature on examination. No
spasm was present. The veteran forward flexed his back to 20
degrees initially, where he stated there was pain. He then
further forward flexed to 60 degrees. Back extension was
limited to 15 degrees due to pain. Lateral bending was 15
degrees bilaterally, secondary to pain in the right lumbar
musculature. Rotation was 20 degrees bilaterally due to pain
in the right lumbar musculature. The veteran could raise up
on his tiptoes but had difficultly on his heels. Heel-shin
maneuvers were done with difficulty due to pain in the lower
back. Heel-to-toe walking was normal but exacerbated the
veteran's pain. Straight leg raises in the sitting position
were negative. Straight leg raises in the recumbent position
showed lower back pain in the right leg at 45 degrees and in
the left leg at 60 degrees. Sensory testing was normal to
light touch, pressure, and vibration in the lower
extremities. The diagnosis was lumbosacral strain. The
"DeLuca" factor for the back was described as a 20 degree
loss of flexion and 5 degrees loss of extension, lateral
bending, and rotation due to pain and flare-up of pain.
There was no excess fatigability, weakened movement, or
incoordination. The examiner estimated that the veteran
would be at least 50 percent more functionally limited with a
flare-up of pain as compared to his baseline activities. X-
rays of the veteran's back showed that the lumbar lordosis
was preserved. No fractures or subluxations were identified.
No significant degenerative changes were appreciated, and the
soft tissues appeared normal. The radiological impression
was an unremarkable study.
II. Analysis
A. Veterans Claims Assistance Act
The Veterans Claims Assistance Act (VCAA), Public Law No.
106-475, 114 Stat. 2096 (2000), substantially amended the
provisions of chapter 51 of title 38 of the United States
Code and, among other things, eliminated the requirement of a
well-grounded claim and enhanced the notice and assistance to
be afforded to claimants in substantiating their claims.
VCAA § 3(a), 114 Stat. 2096, 2096-97 (now codified as amended
at 38 U.S.C.A. §§ 5103, 5103A (West 2003)). In addition, VA
has published regulations to implement many of the provisions
of the VCAA. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (now
codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
and 3.326(a) (2003)).
The Board is aware that there has been a significant amount
of analysis pertaining to the effective date, the scope, and
the remedial aspects of the VCAA. See, e.g., Quartuccio v.
Principi, 16 Vet. App. 183 (2002); Kuzma v. Principi, 341
F.3d 1327 (Fed. Cir. 2003); Paralyzed Veterans of America v.
Secretary of Veterans Affairs, 345 F.3d 1344 (Fed. Cir. 2003)
(but see Public Law No. 108-183, § 701, 117 Stat. 2651, 2670-
1 (Dec. 16, 2003); Conway v. Principi, 353 F.3d 1359 (Fed.
Cir. 2004); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
See also VAOPGCPREC 11-00 (Nov. 27, 2000); VAOPGCPREC 7-2003
(Nov. 19, 2003); VAOPGCPREC 8-2003 (Dec. 22, 2003);
VAOPGCPREC 1-2004 (Feb. 24, 2004).
Given the uncertainty as to the precise application of the
VCAA, exemplified in the authorities cited above, the Board
assumes that the VCAA is applicable to this appeal. We are
aware that in Pelegrini, cited above, the U.S. Court of
Appeals for Veterans Claims stated that, under the VCAA,
the Secretary must provide notice . . . that
informs the claimant of any information and
evidence not of record (1) that is necessary to
substantiate the claim, (2) that VA will seek to
provide, and (3) that the claimant is expected to
provide. Furthermore . . . , in what can be
considered a fourth element of the requisite
notice, VA must "also request that the claimant
provide any evidence in the claimant's possession
that pertains to the claim." 38 C.F.R.
§ 3.159(b)(1); see 38 U.S.C. § 5103A(g) . . . .
Pelegrini, supra, slip op. at 121.
The VA General Counsel recently issued a precedent opinion
interpreting the Court's decision in Pelegrini. In essence,
and as pertinent herein, the General Counsel endorsed the
notice requirements quoted immediately above, and held that,
to comply with VCAA requirements,
the Board must ensure that complying notice is
provided unless the Board makes findings regarding
the completeness of the record or as to other
facts that would permit [a conclusion] that the
notice error was harmless, including an
enumeration of all evidence now missing from the
record that must be a part of the record for the
claimant to prevail on the claim.
VAOPGCPREC 7-2004 (July 16, 2004). Considering both the
decision of the Court in Pelegrini and the opinion of the
General Counsel, the Board finds that the requirements of the
VCAA have been satisfied in this matter, as discussed below.
In April 2003 and March 2004 letters, the RO informed the
veteran of the VCAA and its effect on his claim. In
addition, the veteran was advised, by virtue of a detailed
February 1999 statement of the case (SOC) and January 2004
supplemental statement of the case (SSOC) issued during the
pendency of this appeal, of the pertinent law, and what the
evidence must show in order to substantiate his claim. We
therefore believe that appropriate notice has been given in
this case. The Board notes, in addition, that a substantial
body of lay and medical evidence was developed with respect
to the veteran's claim, and that the SOC and SSOCs issued by
the RO clarified what evidence would be required to establish
entitlement to an increased rating. The veteran responded to
the RO's communications with additional evidence and
argument, thus curing (or rendering harmless) any previous
omissions. Further, the claims file reflects that the March
2003 SSOC contained the new reasonable doubt and duty-to-
assist regulations codified at 38 C.F.R. §§ 3.102, 3.159
(2003). See Charles v. Principi, 16 Vet. App. 370, 373-74
(2002).
The Board concludes that the notifications received by the
veteran adequately complied with the VCAA and subsequent
interpretive authority, and that he has not been prejudiced
in any way by the notice and assistance provided by the RO.
See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993);
VAOPGCPREC 16-92 (57 Fed. Reg. 49,747 (1992)). Likewise, it
appears that all obtainable evidence identified by the
veteran relative to his claim has been obtained and
associated with the claims file, and that neither he nor his
representative has identified any other pertinent evidence,
not already of record, which would need to be obtained for a
fair disposition of this appeal. Thus, for these reasons,
and for the additional reasons discussed below in this
decision, any failure in the timing or language of VCAA
notice by the RO constituted harmless error.
Accordingly, we find that VA has satisfied its duty to assist
the veteran in apprising him as to the evidence needed, and
in obtaining evidence pertaining to his claim, under both
former law and the VCAA. The Board, therefore, finds that no
useful purpose would be served in remanding this matter for
yet more development. Such a remand would result in
unnecessarily imposing additional burdens on VA, with no
additional benefit flowing to the veteran. The Court of
Appeals for Veterans Claims has held that such remands are to
be avoided. See Winters v. West, 12 Vet. App. 203 (1999) (en
banc), vacated on other grounds sub nom. Winters v. Gober,
219 F.3d 1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet.
App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430
(1994). In fact, the Court has stated, "The VCAA is a
reason to remand many, many claims, but it is not an excuse
to remand all claims." Livesay v. Principi, 15 Vet. App.
165, 178 (2001) (en banc).
It is the Board's responsibility to evaluate the entire
record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002).
When there is an approximate balance in the evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2003).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court
of Appeals for Veterans Claims held that an appellant need
only demonstrate that there is an "approximate balance of
positive and negative evidence" in order to prevail. The
Court has also stated, "It is clear that to deny a claim on
its merits, the evidence must preponderate against the
claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert.
B. Increased Rating - Lumbosacral Strain
Disability ratings are based upon schedular requirements that
reflect the average impairment of earning capacity occasioned
by the state of a disorder. 38 U.S.C.A. § 1155 (West 2002).
Separate rating codes identify the various disabilities. 38
C.F.R. Part 4 (2003). In determining the level of
impairment, the disability must be considered in the context
of the entire recorded history, including service medical
records. 38 C.F.R. § 4.2. An evaluation of the level of
disability present must also include consideration of the
functional impairment of the veteran's ability to engage in
ordinary activities, including employment. 38 C.F.R. § 4.10.
Also, where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7.
The Board observes that the words "slight," moderate," and
"severe" are not defined in the Rating Schedule. Rather
than applying a mechanical formula, the Board must evaluate
all of the evidence to the end that its decisions are
"equitable and just." 38 C.F.R. § 4.6. It should also be
noted that use of descriptive terminology such as "mild" by
medical examiners, although an element of evidence to be
considered by the Board, is not dispositive of an issue. All
evidence must be evaluated in arriving at a decision
regarding an increased rating. 38 U.S.C.A. § 7104(a) (West
2002); 38 C.F.R. §§ 4.2, 4.6.
The requirements for evaluation of the complete medical
history of the claimant's condition operate to protect
claimants against adverse decisions based upon a single,
incomplete, or inaccurate report and to enable VA to make a
more precise evaluation of the level of the disability and of
any changes in the condition. Schafrath v. Derwinski, 1 Vet.
App. 589 (1991). Moreover, VA has a duty to acknowledge and
consider all regulations which are potentially applicable
through the assertions and issues raised in the record, and
to explain the reasons and bases for its conclusions.
When a law or regulation changes during the pendency of a
claim for VA benefits and the regulation substantively
affects the claim, the claimant is entitled to resolution of
his claim under the version of the regulation that is most
advantageous to him. See VAOPGCPREC 7-2003 (Nov. 19, 2003)
("[S]tatutes or regulations liberalizing the criteria for
entitlement to compensation . . . may be applied to pending
claims because their effect would be limited to matters of
prospective benefits."); see also Karnas v. Derwinski, 1
Vet. App. 308, 312-13 (1991), overruled in part by Kuzma v.
Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, where the
amended regulations expressly provide an effective date and
do not allow for retroactive application, the veteran is not
entitled to consideration of the amended regulations prior to
the established effective date. Green v. Brown, 10 Vet. App.
111, 116-119 (1997); see also 38 U.S.C.A. § 5110(g) (West
2002) (where compensation is awarded pursuant to any Act or
administrative issue, the effective date of such award or
increase shall be fixed in accordance with the facts found
but shall not be earlier than the effective date of the Act
or administrative issue).
Moreover, in VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000),
the General Counsel held that, when a provision of the VA
rating schedule is amended while a claim for an increased
rating under that provision is pending, a determination as to
whether the intervening change is more favorable to the
veteran should be made. If the amendment is more favorable,
that provision should be applied to rate the disability for
periods from and after the effective date of the regulatory
change; and the prior regulation should be applied to rate
the veteran's disability for periods preceding the effective
date of the regulatory change. Id. A review of the record
demonstrates that the January 2004 SSOC contained the amended
regulations. Therefore, the veteran was made aware of the
changes. See Bernard v. Brown, 4 Vet. App. 384 (1993).
The record reflects that the veteran's service-connected low
back disability is currently evaluated as 20 percent
disabling under the criteria of 38 C.F.R. § 4.71a, Diagnostic
Code (DC) 5292 (2003). Under this code, a 40 percent
evaluation is warranted where the limitation of motion of the
lumbar spine is severe. Id. An evaluation of 20 percent is
warranted for moderate limitation of motion of the lumbar
spine, and a 10 percent rating is warranted for slight
limitation of motion of the lumbar spine. Id.
The Board finds that the veteran's low back disability is
manifested by no more than "moderate" limitation of motion
in the lumbar spine. In this regard, we note that the report
of his June 2003 VA examination showed that the veteran's
range of motion was forward to 60 degrees and backward to 15
degrees. The veteran extended 15 degrees laterally on the
right and the left. Although these results suggested some
limitation in motion of the lumbar spine, they were not
indicative of severe limitation of motion as to warrant the
next higher evaluation of 40 percent, the maximum disability
rating under this diagnostic code.
The Board notes that 38 C.F.R. §§ 4.40 and 4.45 (2003) and
DeLuca v. Brown, 8 Vet. App. 202 (1995), require us to
consider the veteran's pain, swelling, weakness, and excess
fatigability when determining the appropriate disability
evaluation for a disability using the limitation-of-motion
diagnostic codes. Within this context, a finding of
functional loss due to pain must be supported by adequate
pathology, and evidenced by the visible behavior of the
claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997).
However, under Spurgeon v. Brown, 10 Vet. App. 194 (1997),
the Board is not required to assign a separate rating for
pain.
In this regard, the veteran certainly has complained of a
history of low back pain. In the June 2003 VA examination
report, the examiner indicated, in evaluating the veteran
under the criteria of DeLuca, that the veteran would lose at
least 50 percent of his functionality during flare-ups. The
examiner also enumerated the loss of range of motion the
veteran would experience during flare-ups. As noted above,
the veteran's objectively reported low back symptomatology
does not warrant a higher rating than the currently assigned
20 percent. However, based upon the examiner's estimate as
to the impact of flare-ups, which occur outside the
examination setting, the Board will exercise our discretion
to determine that the evidence is in approximate balance in
that regard. Resolving reasonable doubt in favor of the
veteran, the Board finds that the effects of pain reasonably
shown to be due to the veteran's service-connected
lumbosacral strain are better contemplated by an increase in
the veteran's disability rating to 40 percent, the next
higher, and maximum, evaluation under DC 5292. 38 C.F.R. §§
3.102, 4.3, 4.40, 4.45; DeLuca v. Brown, supra.
In a further effort to afford the veteran the highest
possible evaluation, the Board has examined all other
diagnostic codes pertinent to the lumbar spine. Here, the
Board notes that the diagnostic code for lumbosacral strain
awards a maximum disability rating of 40 percent, an
evaluation the veteran now receives pursuant to this
decision. 38 C.F.R. § 4.71a, DC 5295 (2003). Further, there
is no evidence that the veteran has ever been diagnosed with
ankylosis of the lumbar spine. Thus, DC 5289 is not for
application. There is also no evidence indicating that the
veteran has been diagnosed with intervertebral disc syndrome.
Therefore, DC 5293 also does not apply.
Here, the Board notes that the regulations regarding diseases
and injuries to the spine were revised effective September
26, 2003. Under these revised regulations, the back
disability is evaluated under the formula for rating
intervertebral disc syndrome based on incapacitating
episodes. Diseases and injuries to the spine are to be
evaluated under diagnostic codes 5235 to 5243 as follows:
With or without symptoms such as pain (whether or not it
radiates), stiffness, or aching in the area of the spine
affected by residuals of injury or disease-
Unfavorable ankylosis of the entire spine...100%
Unfavorable ankylosis of the entire thoracolumbar
spine...50%
Unfavorable ankylosis of the entire cervical spine; or,
forward flexion of the thoracolumbar spine 30 degrees or
less; or, favorable ankylosis of the entire thoracolumbar
spine...40%
Forward flexion of the cervical spine 15 degrees or less;
or, favorable ankylosis of the entire cervical spine...30%
Forward flexion of the thoracolumbar spine greater than
30 degrees but not greater than 60 degrees; or, forward
flexion of the cervical spine greater than 15 degrees but
not greater than 30 degrees; or, the combined range of
motion of the thoracolumbar spine not greater than 120
degrees; or, the combined range of motion of the cervical
spine not greater than 170 degrees; or, muscle spasm or
guarding severe enough to result in an abnormal gait or
abnormal spinal contour such as scoliosis, reversed
lordosis, or abnormal kyphosis...20%
Forward flexion of the thoracolumbar spine greater than
60 degrees but not greater than 85 degrees; or, forward
flexion of the cervical spine greater than 30 degrees but
not greater than 40 degrees; or, combined range of motion
of the thoracolumbar spine greater than 120 degrees but
not greater than 235 degrees; or, combined range of
motion of the cervical spine greater than 170 degrees but
not greater than 335 degrees; or, muscle spasm, guarding,
or localized tenderness not resulting in abnormal gait or
abnormal spinal contour; or, vertebral body fracture with
loss of 50 percent or more of the height...10%
Note (1): Evaluate any associated objective neurologic
abnormalities, including, but not limited to, bowel or
bladder impairment, separately, under an appropriate
diagnostic code.
Note (2): (See also Plate V.) For VA compensation
purposes, normal forward flexion of the cervical spine is
zero to 45 degrees, extension is zero to 45 degrees, left
and right lateral flexion are zero to 45 degrees, and
left and right lateral rotation are zero to 80 degrees.
Normal forward flexion of the thoracolumbar spine is zero
to 90 degrees, extension is zero to 30 degrees, left and
right lateral flexion are zero to 30 degrees, and left
and right lateral rotation are zero to 30 degrees. The
combined range of motion refers to the sum of the range
of forward flexion, extension, left and right lateral
flexion, and left and right rotation. The normal
combined range of motion of the cervical spine is 340
degrees and of the thoracolumbar spine is 240 degrees.
The normal ranges of motion for each component of spinal
motion provided in this note are the maximum that can be
used for calculation of the combined range of motion.
Note (3): In exceptional cases, an examiner may state
that because of age, body habitus, neurologic disease, or
other factors not the result of disease or injury of the
spine, the range of motion of the spine in a particular
individual should be considered normal for that
individual, even though it does not conform to the normal
range of motion stated in Note (2). Provided that the
examiner supplies an explanation, the examiner's
assessment that the range of motion is normal for that
individual will be accepted.
Note (4): Round each range of motion measurement to the
nearest five degrees.
Note (5): For VA compensation purposes, unfavorable
ankylosis is a condition in which the entire cervical
spine, the entire thoracolumbar spine, or the entire
spine is fixed in flexion or extension, and the ankylosis
results in one or more of the following: difficulty
walking because of a limited line of vision; restricted
opening of the mouth and chewing; breathing limited to
diaphragmatic respiration; gastrointestinal symptoms due
to pressure of the costal margin on the abdomen; dyspnea
or dysphagia; atlantoaxial or cervical subluxation or
dislocation; or neurologic symptoms due to nerve root
stretching. Fixation of a spinal segment in neutral
position (zero degrees) always represents favorable
ankylosis.
Note (6): Separately evaluate disability of the
thoracolumbar and cervical spine segments, except when
there is unfavorable ankylosis of both segments, which
will be rated as a single disability.
Formula for Rating Intervertebral Disc Syndrome Based on
Incapacitating Episodes-
With incapacitating episodes having a total duration of
at least six weeks during the past 12 months...60%
With incapacitating episodes having a total duration of
at least four weeks but less than six weeks during the
past 12 months...40%
With incapacitating episodes having a total duration of
at least two weeks but less than four weeks during the
past 12 months...20%
With incapacitating episodes having a total duration of
at least one week but less than two weeks during the past
12 months...10%
68 Fed. Reg. 51,454, 451, 465 (Aug. 27, 2003) (to be codified
at 38 C.F.R. § 4.71a, Diagnostic Code 5235-5243).
The veteran cannot receive a rating in excess of 40 percent
under these revised regulations because the medical evidence
of record does not show that the veteran was diagnosed with
unfavorable ankylosis of the entire thoracolumbar spine or
that he had incapacitating episodes with a total duration of
at least six weeks in the previous year.
Finally, the Board has considered whether the case should be
referred for extra-schedular consideration under 38 C.F.R. §
3.321(b)(1) (2003). In this respect, the Board notes that
the medical evidence fails to show, and the veteran has not
asserted, that he has required frequent periods of
hospitalization for his low back disability. In sum, there
is no indication in the record of such an unusual disability
picture that application of regular schedular standards is
impractical, especially in the absence of any allegation of
marked interference with employment, attributable solely to
the veteran's back disability. Therefore, the Board finds
that the criteria for submission for an extra-schedular
rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See
Bagwell v. Brown, 9 Vet. App. 237 (1996); Floyd v. Brown, 9
Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227
(1995).
In view of the foregoing, the Board grants an increased
rating, to 40 percent, for the veteran's lumbosacral strain
disability. The appropriate effective date for this increase
is June 10, 2003, the date of the VA examination on which the
Board has determined that an increase is supported by the
evidence.
ORDER
A 40 percent disability rating for lumbosacral strain is
granted, effective from June 10, 2003, subject to the laws
and regulations governing the payment of monetary awards.
REMAND
As noted above, VA has published regulations implementing
many of the provisions of the VCAA. See 66 Fed. Reg. 45,620
(Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102,
3.156(a), 3.159, and 3.326(a) (2003)). Consistent with the
new duty-to-assist regulations, after reviewing the veteran's
case, the Board believes that additional evidentiary
development is needed prior to final appellate consideration
of his claim with regard to post-traumatic stress disorder.
The veteran seeks service connection for PTSD. Service
connection for PTSD requires medical evidence diagnosing the
condition in accordance with 38 C.F.R. § 4.125(a); a link,
established by medical evidence, between current symptoms and
an in-service stressor; and credible supporting evidence that
the claimed in-service stressor occurred. 38 C.F.R.
§ 3.304(f) (2003). See Cohen v. Brown, 10 Vet. App. 128
(1997). If the evidence establishes that the veteran engaged
in combat with the enemy and the claimed stressor is related
to that combat, in the absence of clear and convincing
evidence to the contrary, and provided that the claimed
stressor is consistent with the circumstances, conditions, or
hardships of the veteran's service, the veteran's lay
testimony alone may establish the occurrence of the claimed
in-service stressor. 38 C.F.R. § 3.304(f).
The ordinary meaning of the phrase "engaged in combat with
the enemy," as used in 38 U.S.C.A. § 1154(b) (West 2002),
requires that a veteran have participated in events
constituting an actual fight or encounter with a military foe
or hostile unit or instrumentality. VAOPGCPREC 12-99. Where
a determination is made that the veteran did not "engage in
combat with the enemy," or the claimed stressor is not
related to combat, the veteran's lay testimony alone will not
be enough to establish the occurrence of the alleged
stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996);
Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such
cases, the record must contain corroborative evidence that
substantiates or verifies the veteran's testimony or
statements as to the occurrence of the claimed stressor. See
West v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6
Vet. App. 91, 98 (1993).
The evidence on file indicates the veteran was diagnosed with
PTSD during his June 2003 VA examination. While the examiner
qualified this by indicating that the veteran's PTSD symptoms
fell short of a compensable rating, he, nevertheless, was
diagnosed with the disorder.
Given this diagnosis, VA must attempt to verify the veteran's
claimed stressors, since he has not been shown, nor does he
claim, to have engaged in combat with the enemy. The claims
file does not demonstrate that the RO attempted to verify the
veteran's stressors. The veteran's personnel and ship
records should be obtained, if possible, and used in
attempting to verify his claimed stressors. If necessary,
the RO should request the assistance of the U.S. Armed
Services Center for Research of Unit Records (USASCRUR) in
attempting to locate corroborative evidence of the veteran's
claimed in-service stressors.
If any obtained records or the USASCRUR corroborates one of
the veteran's claimed in-service stressors, the question next
presented is whether such a stressor is clinically considered
to be of sufficient severity to warrant a valid diagnosis of
PTSD. The descriptive definition of a stressor in the
American Psychiatric Association's Diagnostic and Statistical
Manual of Mental Disorders (4th ed. 1994) (DSM-IV) provides
that a valid diagnosis of PTSD requires that a person has
been exposed to a traumatic event in which both of the
following were present: (1) the person experienced,
witnessed, or was confronted with an event or events that
involved actual or threatened death or serious injury, or a
threat to the physical integrity of himself or others, and
(2) the person's response involved intense fear,
helplessness, or horror. If the veteran's claimed in-service
stressor can be independently corroborated, it must be
clinically evaluated in accordance with the provisions of
DSM-IV.
The record does not indicate that the PTSD diagnosis was made
on the basis of a verified history of the veteran's service
stressors and, therefore, it is inadequate for rating
purposes. See West v. Brown, 7 Vet. App. 70, 77-78 (1994).
Further psychiatric evaluation is necessary.
Thus, due process requires that this case be REMANDED to the
RO for the following action:
1. The RO should review the claims file and ensure
that all VCAA notice obligations have been satisfied
in accordance with 38 U.S.C.A. §§ 5102, 5103, and
5103A (West 2002), and any other applicable legal
precedent.
2. The veteran should be requested to provide the
names, addresses, and approximate dates of treatment
for all health care providers who may possess
additional records pertinent to his claim. With any
necessary authorization from the veteran, the RO
should attempt to obtain and associate with the
claims file any records identified by the veteran
that are not already of record.
3. The RO should contact the veteran and request
that he provide any additional specifics, e.g.,
approximate date(s), location(s), and name(s)
associated with his alleged stressful incidents in
service, to include those discussed in his March
1999 stressor statement. Thereafter, the RO should
review the file and prepare a summary of all the
claimed stressors. The summary and all associated
documents, to include the veteran's stressor
statement, should be sent to the U.S. Armed Services
Center for Research of Unit Records (USASCRUR) 7798
Cissna Road, Suite 101, Springfield, Virginia 22150-
3197. USASCRUR should be requested to provide any
information that might corroborate the veteran's
alleged in-service stressors including, but not
limited to, providing a copy of unit histories for
the veteran's unit(s). The RO should also attempt
to obtain personnel records of the veteran and ship
records of the U.S.S. Independence (CV-62) in an
attempt to verify his claimed stressors.
4. Assuming the RO verifies at least one of the
veteran's claimed stressors, the RO should schedule
the veteran for an examination by a VA psychiatrist
experienced in evaluating PTSD, to determine the
diagnoses of all psychiatric disorders that are
present.
a. The RO should give the examiner a complete
and accurate account of the stressors that it
has determined are established by the record,
and the examiner must be instructed that only
those events may be considered for the purpose
of determining whether in-service stressors were
severe enough to have caused the current
psychiatric symptoms and whether the diagnostic
criteria to support the diagnosis of PTSD have
been satisfied by the in-service stressors. The
diagnosis should conform to the psychiatric
nomenclature and diagnostic criteria contained
in DSM-IV.
b. If the veteran is found to have PTSD, the
examiner is requested to identify the diagnostic
criteria, including the specific stressor or
stressors supporting the diagnosis.
c. If the veteran is found to have a
psychiatric diagnosis other than PTSD, the
examiner is requested to render an opinion as to
whether it is at least as likely as not (i.e.,
to at least a 50-50 degree of probability) that
the veteran's diagnosed psychiatric illness is
directly related to his military service, with
reference to any in-service manifestations of
the diagnosed disorder, or whether such a
relationship is unlikely (i.e., less than a 50-
50 probability).
d. A complete rationale should be given for all
opinions and conclusions expressed. The claims
file, including a copy of this Remand, should be
made available to the examiner before the
examination, for proper review of the medical
history.
5. Thereafter, the RO should readjudicate the
veteran's claim for service connection for PTSD. If
the benefits sought on appeal remain denied, the
veteran and his representative should be provided
with an SSOC. The SSOC should contain notice of all
relevant actions taken on the claim, to include a
summary of the evidence and applicable law and
regulations considered pertinent to the issue
currently on appeal since the January 2004 SOC. An
appropriate period of time should be allowed for
response.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified. The appellant has the right to
submit additional evidence and argument on the matter or
matters the Board has remanded. Kutscherousky v. West, 12
Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
____________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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